Nagle v. Powell

• Decision Date: 21 August 1940
• Docket Number: 27930.
• Citation: Nagle v. Powell, 105 P.2d 1, 5 Wn.2d 215 (Wash. 1940)
• Parties: NAGLE et al. v. POWELL et al.
• Court: Washington Supreme Court

105 P.2d 1

5 Wn.2d 215

NAGLE et al. v. POWELL et al.

No. 27930.

Supreme Court of Washington

August 21, 1940

As Amended on Denial of Rehearing November 16, 1940.

Department 1.

Action by Cecile I. Nagle and husband against Andrew E. Powell and wife, and Waldon T. Gilmore, and wife, and Audrey H Caulfield, for damages allegedly sustained as the result of an unlawful conspiracy between the defendants. From the judgment, Andrew E. Powell and wife appeal.

Affirmed.

Appeal from Superior Court, Spokane County; Louis F. Bunge, judge.

George W. Young, of Spokane, for appellants.

Robertson & Smith and Hart Snyder, all of Spokane, for respondents.

MILLARD Justice.

Plaintiffs a marital community, brought this action against Andrew E Powell and wife, Waldon T. Gilmore and wife, and Audrey H Caulfield to recover damages alleged to have been sustained as the result of an unlawful conspiracy between defendants. Trial of the cause to a jury resulted in a verdict in the amount of $2,250 in favor of the plaintiffs against all of the defendants, which the court reduced to $935. From the judgment entered in accordance therewith all of the defendants gave notice of appeal. However, all of the defendants except the marital community consisting of Andrew E. Powell and wife abandoned their appeal.

Counsel for appellants contends that as conspiracy is a combination of two or more persons to commit a criminal or unlawful act or to commit a lawful act by criminal or unlawful means ( Eyak River Packing Company v. Huglen, 143 Wash. 229, 255 P. 123, 257 P. 638), and that as a party can not be held liable as a conspirator unless the evidence shows that such person entered into an agreement with the other conspirators to accomplish the object of a conspiracy ( Dart v. McDonald, 107 Wash. 537, 182 P. 628), appellants' motion for a nonsuit at the conclusion of respondents' case, or their motion for judgment non obstante veredicto should have been granted; that while a conspiracy may be proved in the absence of direct and positive evidence by circumstantial evidence ( Karr v. Mahaffay, 140 Wash. 236, 248 P. 801), there is neither evidence nor reasonable inference from evidence to justify the verdict.

In Karr v. Mahaffay, 140 Wash. 236, 248 P. 801, we quoted with approval the following language from Wolfgram v. Dill, 37 S.D. 282, 157 N.W. 1059, 1061, respecting the rule that circumstantial evidence is competent to prove a conspiracy: 'Where two or more persons are found to be working for the accomplishment of the same definite object, it may be inferred that they are pursuing a preconcerted plan or arrangement to accomplish that object.'

The first question presented is whether the evidence on behalf of respondents or the reasonable inferences to be drawn therefrom were sufficient to make a question for the jury as to the existence of a conspiracy between appellants and defendants which had for its purpose the acquisition of an established business.

That there was substantial evidence to sustain the verdict on the question of conspiracy, hence the judgment should be affirmed, is clear from the following summarization of the facts:

In August, 1936, one McClintock and his brother commenced a mattress rebuilding business in Spokane at East 2520 Aprague Avenue. In November, 1936, the older McClintock brother rented a room in the Powell building, which is owned by appellants, on a month-to-month tenancy at an agreed monthly rental of thirty dollars. The younger brother had quit the mattress rebuilding business. In the room in the Powell building McClintock installed his mattress-making equipment and operated under the business name of McClintock Mattress Company. In October, 1937, McClintock sold the business under a conditional sales contract to L. M. Nagle. The consideration for the contract was seventeen hundred and fifty dollars, of which Nagle paid five hundred dollars at the time of the execution of the contract and agreed to pay the balance of twelve hundred and fifty dollars in monthly payments of seventy-five dollars. Nagle operated the mattress-making business from January 1, 1938, to September 11, 1938. During the month of August, 1938, a frame garage at the rear of the Powell building in which was a mattress gin used in the mattress rebuilding was destroyed. August 31 1938, Nagle requested appellants to erect a new building in which to house the gin. Appellants refused to construct a new building. A few days later (August 31, 1938), despite that refusal, respondents paid the rental for September to appellants. On or about September 11, 1938, Nagle, who was then in financial straits, went to Hot Lake, Oregon, to obtain a contract with a sanitorium at that place for renovating mattresses. His wife remained in Spokane to take care of the mattress rebuilding business. September 16, 1938, she learned from her husband that he did not contemplate returning to Spokane, whereupon she went to Hot Lake to persuade her husband to return. She Waldon T. Gilmore in charge of the business during her absence. She was detained in Oregon until October 1, 1938. Prior to that time she communicated with Gilmore by telegram and also communicated with W. W. Wright, the owner of the apartment house where she and her husband resided. She requested Wright to call at the mattress factory to ascertain whether the business was operating properly. Wright made a number of trips to the factory where he found Gilmore and Caulfield in actual charge of the business. On Mr. Wright's first visit a certificate from the State Tax Commission was upon the wall in the name of 'McClintock Mattress Company, L. M. Nagle, proprietor.' Later, and prior to the return of Mrs. Nagle to Spokane, he observed a new certificate on the wall in the name of 'McClintock Mattress Company, A. Caulfield and W. Gilmore, proprietors.' Three days after Mrs. Nagle left Spokane to visit her husband, defendant Mrs. Caulfield informed the State Tax Commission that she and Gilmore had taken over the business and applied for a new certificate. September 30, 1938, defendant Gilmore paid appellant Powell the rental for the month of October, 1938, with funds of the McClintock Mattress Company which that company received during Mrs. Nagle's absence in Oregon. A receipt was executed by appellant Powell to McClintock Mattress Company, dated October 1, 1938, acknowledging the payment of the rent by the 'McClintock Mattress Company, A. Caulfield and W. Gilmore.' By this time Mr. Wright discovered that conditions at the mattress factory were not as he thought they should be, whereupon he telegraphed Mrs. Nagle and advised her to return immediately. She returned on October 1, 1938, and on her visit to the mattress factory defendants Gilmore and Caulfield refused to make an accounting and settlement. After business hours she and Mr. Wright went to the mattress factory for the purpose of examining the books. She was unsuccessful in making an entry as the lock had been changed by Caulfield and Gilmore that day following the interview with Mrs. Nagle. She called at the home of Gilmore that evening, but he refused to supply her with a key to the new lock, informing her that he and Mrs. Caulfield had leased the premises from appellant Powell. The next day, Sunday, October 2, 1938, Mrs. Nagle and Mr. Wright called upon appellant Powell at his apartment in the Powell building immediately above the mattress company. Powell was informed that Gilmore had locked respondents out and refused to surrender the premises or make an accounting. Mr. Powell was informed that the rental on the building was paid from the McClintock Mattress Company's funds. Powell informed respondents that the mattress company did not owe him anything for rent, that the rent was paid to November 1, 1938, and they would have to settle their differences with defendants Gilmore and Caulfield. With an oath, Powell said that Gilmore had paid the rent on the building; that Gilmore was entitled to the building and 'I am going to see that he gets it.' He further said that Gilmore was a good mattress maker, he was well liked, and that he was...